In his July 4 message to Congress, Lincoln defended his action in
“suspending” the writ with his famous remark suggesting that a President might choose to violate a single law lest “all the laws but one . . . go unexecuted.” But in making this statement, the President was not asserting a general constitutional power as Commander in Chief to pick and choose among statutory mandates regulating the conduct of war. He was instead remarking on the President’s responsibility to take action on an emergency basis when doing so is necessary to preserve the nation. Even here, Lincoln was careful to insist that Congress retained ultimate control, and he readily conceded that his bold initiatives, including those regarding the suspension of habeas, were subject to statutory qualification or override: “Whether there shall be any legislation upon the subject, and, if any, what, is submitted entirely to the better judgment of Congress.” In other words, Lincoln was arguing that so long as a power resided in the Congress, and the Congress was unable to act because it was not in session at a moment of emergency or crisis, the President could, in effect, act so as to preserve the nation. Although such initial executive action would clearly shift the burden of inertia sharply in the Executive’s favor, Lincoln did not challenge Congress’s authority to countermand the President’s emergency actions.

If someone asks me for my “best reading” of the Second Amendment, or any other part of the Constitution, then I would try to offer it without taking crass political considerations (or what Jack Balkin and I have elsewhere called ‘low politics,” because I suspect you agree with us that it is impossible to separate constitutional analysis from “high politics,” i.e.,some belief as to what is best for the country, all things considered)into account…. Perhaps my mistake was using the term “endorsing the decision.” It would have been more accurate had I said “my principalreason for being enthusiastic about the decision,” in the specific sense of its outcome. As a lawyer, I dislike both the Scalia and Stevens pinions, quite independent of any political views I have, and I think I can explain that without becoming crassly political.

My Yale piece[, The Embarrassing Second Amendment,] didn’t touch on “political considerations,” though I published a piece in Randy Kennedy’s journal, "Democratic Politics and Gun Control," 1 RECONSTRUCTION, No. 4, pp. 137-141 (Spring 1992), setting out my belief that Democrats were behaving stupidly in over-investing in “gun control” legislation, especially given that most of it wasn’t likely to be effective.... (It’s interesting to speculate why the notably unprincipled Clinton stood so firmly in behalf of the assault weapons ban; if he thought it was good politics, then this is simply one more piece of evidence that perhaps we have overrated his political sagacity.)

In one of my other replies, I mentioned the Newdow decision in 2004, where I both a) thought that the Supreme Court fabricated a “preposterous” standing doctrine to avoid affirming the clearly correct Ninth Circuit decision invalidating “under God” in the Pledge of Allegiance; and b) was immensely relieved that the Court had avoided a decision that would have created a tremendous backlash that would undoubtedly have helped Republicans and hurt Democrats. Judge Posner then made the following point:: “So in Newdow, you think the standing ground for dismissing the suit was preposterous but would you say that, or would you as a Democrat commend Stevens for his opinion?”

This is a very challenging question. For me this evokes the debate many years ago between Gerald Gunther and Alexander Bickel about “passive virtues” and betrayal of “judicial principles.” One can ask the empirical question whether Supreme Court justices do take political considerations into account when deciding whether or not to grant cert. in the first place or, as in Naim v. Naim, to shamelessly (and shamefully) dodge a case because of a (well-merited?) belief that it would be politically counterproductive, with regard to the possibility of enforcing Brown, to invalidate Virginia’s anti-miscegenation law in 1956 (as against a decade or so later, when it was an easy, unanimous decision to do so). Moreover, judges in multi-member courts clearly take “political considerations” (though presumably not of a “partisan” sort”) in deciding whether or not to craft opinions in a way to gain additional votes or, instead, to risk the likelihood issue a full-throated concurring opinion or a potentially unnecessary dissent. )

But, obviously, there is nothing “public” about most exercise of such political actions. And, even more to the point, no federal (or other) judge has, to my knowledge, ever said publicly, “I support X (where X is either a legal principle or a decision of the Supreme Court) because it will be good for the Republican (or Democratic) Party.” Consider Bush v. Gore. I personally believe that Judge Posner has written the best defense of what I regard as an indefensible decision, and there is certainly a “politics” to his defense, based on the perception, justified or not, that the country was on the brink of instability and that the Court’s intervention, though legally dubious—Posner has been absolutely caustic about the Court’s per curiam opinion as a piece of “legal craft”—is legitimate because it brought us back from that brink. Nowhere, of course, does he suggest that what justifies Bush v. Gore is that it was good for the Republican Party, however much many of us believe that such a view motivated one or more of the majority of the Supreme Court in that case.

Posner distinguishes sharply between interventions in public debates and “partisanship,” where one is presumably assessing the position that one takes on the basis of its service to the interests of a political party. Indeed, he is famous for his many books offering interventions in controversial issues of public policy ranging from sex to national security, in addition to his aforementioned defense of Bush v. Gore. One of the things I admire in Posner is that he follows ideas wherever they take him, without fear or favor. I am confident that he has been indifferent to the likely reception of his views by people who might have been relevant to determining, for example, whether he would be “promoted” to the Supreme Court. Criticizing Robert Bork’s jurisprudence was certainly not a good “career move” for someone who really cared about such things. Whether or not one agrees with Posner on specifics, I think he has instantiated a commitment to intellectual integrity that I assume most of us would like to emulate.

Still, what constraints, if any, should academics feel with regard to publicly acknowledging their partisan commitments? Posner writes:

I don't think [academics should engage in the public support of candidates]. Remember Weber's great essay on politics as a vocation. The public morality of a politician is different from private morality; he has to lie, forge unprincipled compromises, etc. (Of course a degree of that is required in private life as well, but less.) But if the law professor supports the politician publicly, his principles become corrupted. I am led by the episode to think that law professors, at least those in fields that generate partisan disputes, should be like federal judges, and forswear any party identification or political activity. Otherwise their arguments will be thought in bad faith.

I’m inclined to disagree, but I also remember feeling very strongly, when I was a graduate student over 40 years ago, that Henry Kissinger was more truly loyal to the political ambitions of his then-patron Nelson Rockefeller than to telling his students exactly what he thought about the great issues of the day, including, of course, the Vietnam War. I never had such concerns about, say, Samuel Huntington on the right or Stanley Hoffman and other critics of the Vietnam War on the left. They said what they meant and meant what they said.

So this means that I am not certain what my own views are (or, more the point, should be). I end with these questions: Is it enough to engage in “full disclosure” by admitting to one’s partisan preferences up front? We require professors to indicate who has funded their research and certainly don’t disqualify them from membership in the academy because they receive funds from highly “interested” sources. (Exxon has notably funded some academic critiques of punitive damages.) If that’s all right, then why doesn’t it suffice for me to say that there is a happy conjunction between what I consider to be my “best” views about constitutional meaning and the interests of the political party with which I identify? Is it better to keep this a secret (since Posner surely would agree that many (most?) academics will have partisan preferences).